The public can view them, copy them, and reuse them freely in every regard. An article in Quartz by Anne Quito reports:

So far, these images, which range from Restoration-era cartoons to colonial explorers’ early photographs, have been used on rugs, album covers, gift tags, a mapping project, and an art installation at the Burning Man festival in Nevada, among other things.

The Library posted them not only so they could be enjoyed and reused, but so the public would do what the Library is not staffed to do all by itself: add tags. Says Quartz:

to date, the collection has garnered over 267 million views, and over 400,000 tags have been added to images on Flickr by users. Through a “tagathon” with the Wikimedia UK community, the Library discovered over 50,000 maps in the collection, which they are now in the process of fitting into a modern map.

I can’t figure out how to search within a collection at Flickr, but this view at least does some clustering.

Charlie Nesson asks: “When we talk about our space, who are we?” In Jeff Huang‘s presentation, it seemed like he was given the perfect hypothetical — a desert — to build a public and private place. “In cyber terms, we are people of the Net. What then is our domain? It’s the public domain. And if you are to build the public domain, then I believe the wisdom to follow from a lawyer’s point of view is the same wisdom that has more or less informed the world of real property. If you want an orderly world of real property, you build a registry. If you want an orderly world of bits, you build a registry.” This is Charlie’s new project: a registry of the public domain. They’re starting with IMSLP.org: a musical score library. It has 93,000 musical scores in the public domain., exquisitely put together.

The Net divides into two domains, says Charlie, one that is free and one that is not. Free means free of copyright and other encumbrances. Charlie wants to build our domain on a foundation solid in law. The registry he’s building identifies works as public domain, with links to the registrars attesting to this. He wants it to be populated by librarians with public domain collections. But, the problem with registries is litigation risk, i.e., the threat of lawsuit. “So the essence of this idea is to couple the registrar with a pro bono commitment of legal service from a law firm of repute to defend litigation based on infringement.”

Where do you find the institutions that want to protect privacy, asks Charlie. How about libraries, he suggests?

“I’m tough on privacy, Judith,” says Charlie, in response to a question. “I’ve never liked it.” He explains it’s so often based on fear and looks backwards.

Martin Nowak looks at cooperation evolutionary term in which a donor pays a cost and a recipient gets a benefit. He explains game theory’s Prisoner’s Dilemma. Why do people cooperate? “Natural selection chooses defection,” rather than cooperation. In a mixed population, defection becomes increasingly more popular. So, natural selection needs help to favor co-operation. Martin categorizes the factors into five mechanisms: kin selection, direct reciprocity, indirect reciprocity spatial selection and group selection.

Direct reciprocity (I help you, you help me). If you play the Prisoner’s Dilemma several times, the economics changes, as The Folk Theorem shows them. Martin quickly summarizes Axelrod and Rapaport. [Too hard to live blog. Read Ethanz. Really. Now.] Errors turn out to ruin cooperation, so you need a process that allows for forgiveness. Martin’s doctoral dissertation showed that if everyone plays randomly, the right tactic is to always defect. A tit for tat strategy corrects that, and generous tit-for-tat (I may still cooperate even if you defect) provides a math model for the evolution of forgiveness and cooperation. There are always oscillations; cooperations are never stable. We need structures that rebuild cooperation quickly after it is destroyed because it always will be destroyed.

Direct reciprocity allows allow for the evolution of cooperation if there’s a prospect of another round. Indirect reciprocity (I help you, someone helps me) leads to cooperation if reputation matters. You need natural selection to care about reputation, so to speak. “What you need for indirect reciprocity is gossip” to spread reputation. For that you need language. “You could argue this is the selection process that led to language.” “For direct reciprocity you need a face. For indirect reciprocity you need a name.” (David Haig) Our brain has both capabilities. If interactions are completely anonymous you run into problems. Also, you need gossip to be relatively honest.

Spatial selection = neighbors help each other. Martin flips through some graphs that shows that it selects for coop if you have a few close friends. Likewise, evolutionary set theory says that people wanting to join particular groups can also lead to coop.

Judith: What about strong vs. weak ties?
Martin: We assume equal ties. There’s a trade-off between wealth and vulnerability.

Nicholas Negroponte asks himself a question every morning: Is he doing something that normal market forces would do anyway? If so, he stops. He wants to do that which market forces will not do.

There are now 3M One Laptop Per Child laptops in the hands of kids. This isn’t huge since OLPC would like to get laptops into the hands of about 500M kids. Before that, people assumed computers teach by imparting content. Instead, you want to see children teaching. 20-30% of the million Peruvian kids with OLPC machines are using them to teach their parents how to read.

Nicholas goes through some points he made in a talk at the UN recently. Among the points: Measurement is overrated. You only measure when the changes are so small that you can only see them by measurement.

Judith: When we see well-off kids sitting side by side looking into screens, we think it’s a nightmare of anti-sociality, but when we see your adorable photos of third world kids in the same position, it looks desirable?
Nicholas: I don’t see the well-off kids that way. And why don’t we make OLPC’s available in the US? Because the issues are deeper than that.

A: Talk about anonymity…?
Jeff Jarvis: It’s foundational to democracy. It’s getting a bad name because of trolls. But it must be protected.

Q: This discussion is soaked in privilege. There’s much inscribed in the language that affects how people act. When you idolize the public space as a place where all can share their ideas safely, it feels really far away for me.

Q: (Charlie) Nicholas, you’ve said that Uruguay has given all 500,000 of its kids OLPCs. Given your position on measurement, what change will we see?
Nicholas: Their curiosity, the way they approach problems, the way they look at things…I think you’re going to see a nation that is far more creative than many other nations. Nicholas tells a story of kid whose homework got 100K hits.
Martin: Who teaches them how to use it?
Nicholas: It’s genetic :) We’re going to do a scientific experiment in which we drop OLPC laptops out of helicopters onto remote villages and come back in a year and see how many have learned how to read.

Q: (urs gasser) One vision says build a great tool and see what happens. The other is to study human behavior scientifically. (Nicholas vs. Martin). How difficult is the translation from findings from science about human behavior to adapting them to technology?
Martin: I’m fascinated by mathematics, but we do apply it to practical issues. In the field of cooperation, we’d like to bring the models closer to human observations. For example, many cultures like punishment, but I think it doesn’t work well to create cooperation because it creates complications. Reward seems better. So, we study that. We do the same experiment in multiple cultures. In Romania, for example, people differentiated between public and private outcomes, because they lacked faith that public engagement had positive outcomes.

Q: (zeynep) The Net has let the cooperative side of human nature be more manifest. Does your work in evolutionary biology take account of this?
A: The coop we see in the animal world must rely on direct observation. Humans can communicate. We don’t have to rely on our personal experience with another to decide whether to coop. The Net can help us to evaluate others quickly.

I got to interviewCharles Nesson, a Berkman founder, about the Communia conference in Italy about the role of the university in cyberspace. The podcast includes snippets from presentations at the conference, as well as Charlie’s visionary thinking.

Lewis Hyde is giving a Berkman talk on his new book, Common as Air (Aug 17). He says a commons is a social regime for managing some collectively held resource. The idea comes from the idea of shared property. They worked because they were stinted: ruled for limited use, e.g., you can take wood from trees but only up to a certain height, you could pasture only a limited number of cattle and only if you’re a land owner. So, if you were thinking about cultural commons today, how would you stint them? And, there were limits on people’s ability to take land out of the commons. commoners had the right to take down encroachments, which they would do in the yearly “beating the bounds”; it was a social affair. As early as 1217, there were laws granting the right to tear down encroachments.

He says the book is about how our founding fathers thought about the commons and whether their way of thinking could be usefully applied now. They wanted to create a commons of knowledge. They looked on patent and copyright generally unfavorably. Lewis got to thinking about this when Congress extended copyright yet again, a form of “parliamentary enclosure.”

He distinguishes the public domain from the cultural commons. The latter would be durable because it’s governed by rules. What would it take? He’ll talk about three ways…

He starts with a distinction Michael Sandel makes between choices and duties. Sandel says in the US we start with a myth of the freely choosing self. But we’re encumbered — bodies, families, cultures. Conscience encumbers us, Sandel says. The aim, says Lewis, is to preserve things larger than ourselves, that encumber us, but that also give us more ability. Lewis thinks about this as “the encumbered and comic self.” So, how do individuals respond to the duties of the commons.

Lewis cites a Pete Seegar story about the origins of “We Shall Overcome.” A number of known songs had elements of the lyrics. It moves from voice to voice, occasionally changing rhythms and lyrics. Around 1960, it becomes The Movement’s song. Friends urged Seegar to copyright it to keep others from copyrighting it for commercial purposes. So, Seegar and four friends copyrighted it, but they signed a “songwriter’s contract,” putting all the money into fund. It’s a good example, Lewis says, of someone recognizing obligations to something bigger than himself, trying to keep it in the community. This is like the GPL.

So, if an individual wants to protect a commons, then what’s needed? A norm that then gets turn into a legal protocol that claims and releases. (This is the “copyleft” alternative, a term Lewis hates, because the correlate of a right is a duty, so we ought to call it “copyduty.”)

He refers to Michael Walzer’s Spheres of Justice which says that justice varies within the different social spheres we’re in. Tyranny is what happens when one sphere dominates another. E.g., when the entertainment industry dominates Congress’ view of copyright, which further gets exported to colleges that are asked to turn in their students for violating copyright. MIT, to take one example, “beat the bounds” by refusing to do the entertainment industry’s bidding.

The third piece looks at the spaces between the spheres of social life. How can we have conversations across those spheres. He’s thinking of common carriers as interstitial fora that allow for conversation. How can we make the these durable? Ben Franklin built a public platform where anyone could speak. It was about freedom of listening, because you as a member of the audience in such a hall got to hear conflicting voices. What interests Lewis about these sort of “carrier commons” is the idea of divided sovereignty. When the Founders were designing the country, sovereignty was always unified. But, fearful of power, the Founders decided to divide it. (The balance of power idea came via Adams who had read about balanced forces in Newton.) In the book, Lewis shows that as the Founders think about the circulation of knowledge, their history taught them that copyright and patent were forms of monopoly privilege that resulted from an abuse of royal power. The Founders did not believe that you had a natural right to what you’ve created; these are state-given privileges and monopolies. They felt the monopoly was a form of unwarranted sovereignty. Stephen Breyer has said that the word “limited” is in the Constitution applied to “monopolies” as a reference to the idea of limits on unified sovereignty. Copyright should not be used to suppress voice and ideas.

He gives two examples. One is Harry Lewis’ Blown to Bits that wanted to reproduce Larry Summers infamous memo, but it would have cost hundreds of thousands of dollars to litigate the copyright claim. [THE NEXT DAY: In the comments below, Harry elaborates and corrects this example. Thanks, Harry!]

So, suppose you have a public domain that is poorly guarded and you want to create a well-regulated, sustainable cultural commons. You could do “claim and release” like Pete Seegar. Set up a cultural commons. But what do you do if you want to mash up things with different licenses? Right now, the most restrictive license will trump. But norms can stint the commons. E.g., the Bermuda Principles for sharing human genome info: labs release decodings quickly, which turns out to enable very useful annotations (“this gene is correlated with lactose intolerance”) that are updated globally every morning. This is done through norms, not laws.

Q: The Founders increased ownership rights, e.g., corporations…
A: They couldn’t foresee what would happen in the 1880s. Property rights are rights of action and rights of exclusion. If you only focus on exclusion, you lose the communitarian action side. The Founders viewed property as simple right to exclude, but they also thought there were properties held in commonality.

Q: Franklin refused to patent inventions. He was clear that he was enabled by those who came before him.
A: Yes. I have two chapters on him. The Founders operated under a civic republican ethic. Once you have ownership, you should serve the public. Once he got rich enough, that’s what he did.

[me] Is there a duty to preserve the commons, or is it just a norm? What might the duty be grounded in?
Q: The Commons was founded on a need. Where are the needs defined in other areas?
A: A commons has to nominate the ends to which it’s dedicated. The agricultural commons was designed to provide enough food. Some commons and rights in commons were designed to support the poor. In the book, I ask why the Founders wanted free circulation of knowledge. First, for self-governanceCitizens need to be informed. (see Adams) Second, for scientific knowledge. (See Franklin.) Third, social selves or public beings: Goethe said that his work has come from many many sources. “My work belongs to a collective being whose name is Goethe.” Franklin’s genius was of a host: someone who could absorb from a community of knowledge. The duty to the commons comes from a sense of collective being. “Individual” is a relatively new word; people viewed themselves as members of families and communities. “Dividuality” is an older word. Even norms don’t work unless they make sense to how you see yourself as a human being.

Q: When did copyright switch in case law from a limited right to a sense of ownership?
A: Middle of the 19th century, when Fair Use appeared because copyright was becoming a commercial, abstract right. Originally, derivative works weren’t covered; you could abridge and translate without violating copyright. Then a judge decided that because it might cost the author some sales, it was covered.

Q: Is there a political solution?
A: That there’s been legal pushback is hopeful. So is the academic open access process.

Q: Can you build a cultural commons for small communities, e.g., 140 people living in a small, isolated area of Mississippi.
A: I write books. But you also need organizers. So, we’re back into American politics.